Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [6.19 p.m.]: I move:

That this bill be now read a second time.

The main purposes of this bill are to increase the fairness of workers compensation and common law provisions relating to dust diseases, to make procedural changes to enable more efficient disposal of proceedings in the Dust Diseases Tribunal and facilitate the settlement of claims, and to make other miscellaneous revisions. Dust diseases, to which this legislation relates, are defined to include conditions such as asbestosis, mesothelioma and silicosis. While asbestos is no longer mined or in general use in New South Wales, its harmful effects on individuals, families and society continue. Many of the current cases of asbestos-related disease arise from exposure during the 1950s, 1960s and 1970s when few, if any, adequate precautions were taken to protect workers and others.

It is an established principle that the relevant employers have a responsibility to fund claims under the separate workers compensation dust diseases scheme and related common law claims. This bill provides a package of improvements that is designed to be fair and reasonable to all parties affected. One of the main proposals relates to common law entitlements for dust diseases in circumstances where the claimant dies before his or her claim is determined by the Dust Diseases Tribunal. In those circumstances, the entitlement to general damages - that is, damages for pain and suffering, loss of amenity and related items - is automatically extinguished.

It is not uncommon for workers and other persons suffering from the most serious type of dust disease to have very limited life expectancy. Consequently, claimants are often under considerable pressure to try to finalise their general damages claim before death, for the benefit of their families. This has meant that in some cases hearings have been held in harrowing circumstances when the claimant is on the verge of death. Having regard to the special nature of dust diseases, the bill provides that where the claimant dies before completion of the Tribunal proceedings the claimant’s estate will still be able to pursue recovery of the outstanding general damages. This is intended to avoid the arbitrariness and added distress involved in the present situation.

Associated procedural changes are included that are intended to facilitate earlier hearings through more efficient procedures. Specifically, the tribunal will be empowered to make rules requiring claimants to supply particulars, or additional particulars, at prescribed times. Another proposal involves the relationship between a worker’s rights to workers compensation and to damages at common law in respect of the same dust disease. In the December 1997 decision of James Hardie v Newton the Court of Appeal extended the previously accepted principles for offsetting between those two categories of entitlement.

It was held in that case that although the worker’s common law claim related only to damages for pain and suffering the amount of weekly compensation already received by the worker must nevertheless be deducted from those damages. The Government considers that that approach tends to result in an inordinate reduction in the worker’s overall entitlements in these cases. The bill will restore the status quo that applied before that decision. The result will be that workers compensation entitlements of a person claiming damages for a dust disease will still be deducted, but only from the part of damages relating to economic loss.

That approach to offsetting benefits will achieve in a reasonable way the aim of avoiding double payment of benefits for the same disease. A related change involves the position of the Workers Compensation (Dust Diseases) Board in relation to parties - other than employers - who are liable at common law for dust diseases. It is not appropriate for the negligent party - for example, a supplier of asbestos products - to receive a reduction in its common law liability through offsetting principles as a windfall. The bill provides that where a reduction is made in the third party’s common law liability, by virtue of compensation paid to the worker by the
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board, the third party must reimburse the board for the relevant amount. If that does not occur, the compensation fund administered by the Dust Diseases Board, which is financed from an annual levy on employers, would be effectively subsidising third parties who have caused workers to contract these serious conditions.

The proposed reimbursement requirements are appropriate and equitable. They are similar to corresponding reimbursement requirements that already exist under the main Workers Compensation Act. Another important proposal in the bill relates to the time allowed for the bringing of common law claims for dust diseases. The existing provisions of the Limitation Act, which lay down a basic three-year limit for claims that runs from time of injury, do not easily fit the reality of gradual-onset dust diseases. Cases of dust disease may have a latency period of 30 years or more.

The current Act allows discretion to extend the three-year and related time limit provisions based on factors such as the claimants having been unaware of the disease or its cause or extent. However, application of such provisions takes time and involves additional expense for claimants who may have a short life expectancy. In recognition of the particular circumstances applicable to dust diseases, it is proposed to minimise such technical legal hurdles by providing that those current provisions do not apply in these cases. In consultation some organisations have raised a concern that changes, such as that proposed to limitation provisions, could increase the case load of the Dust Diseases Tribunal by encouraging forum shopping from interstate or overseas.

That concern is proposed to be addressed more widely in other legislation taking account of comments by the Chief Justice and the President of the Court of Appeal in the recent judgment in James Hardie v Grigor. The aim is to provide that a court’s discretion to accept jurisdiction in forum shopping situations may include the question of diversion of limited judicial resources known as public interest. Several other items in the bill aim to make resolution of common law claims in the Dust Diseases Tribunal faster and more efficient. Firstly, the hearing of cases in the tribunal will be streamlined by changes to evidentiary procedures. Evidence obtained by discovery and other procedures will be able to be reused in subsequent proceedings where appropriate.

An additional change will prevent the relitigation without leave of the Tribunal of issues of a general nature that have been determined in prior proceedings. Possible examples of such issues may be the carcinogenic nature of certain types of asbestos fibres or the availability of safety precautions at a particular time. At present, the same generally applicable issues, having been determined by exhaustive and costly examination of evidence in one set of proceedings, may have to be heard and determined afresh in later cases. If issues fall into the proposed general category where relitigation would be restricted, the tribunal will have a discretion to grant leave for the reopening of such issues in appropriate cases. Criteria in exercising that discretion will include matters such as how the previous proceedings were conducted and the availability of new evidence.

The Dust Diseases Tribunal was fully consulted on these and other aspects of the bill. A further provision designed to improve procedures involves situations where the worker’s employer has been covered by two or more insurers over the time when the worker was employed in dust-exposed duties. At present, disputes between those insurers about which of them is liable have the potential to delay payment of damages to workers who have a clear entitlement. The proposed changes address that problem by designating the last relevant insurer as the one responsible for initially dealing with the worker’s claim. That will include acting as defendant in the proceedings and, if appropriate, arriving at a compromise or settlement with the claimant. Separate arbitration is to be provided to resolve the insurance issues, following resolution of the worker’s claim.

The bill gives the disputing insurers in these cases scope to agree on some other process to determine the question of which of them is properly liable under the legislation. Arbitration will apply only as a last resort if the dispute is not otherwise settled by the time the tribunal gives its judgment in the worker’s proceedings. If the matter then has to go to arbitration, the insurer found to be liable through that process - as well as covering the worker’s entitlement - will generally have to meet the costs of the other parties, including the cost of arbitration. Those cost arrangements are to be detailed in rules under the legislation. Ancillary provisions will give the tribunal discretion to order part payment of damages to the worker on an interim basis. That will be available pending final judgment in the proceedings by the worker or pending subsequent arbitration of outstanding insurance issues.

Whether interim damages are appropriate in a particular case will depend on considerations that include the length of time likely until final
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resolution. The tribunal is also to be given the flexibility to make orders under the rules for exemption, where appropriate, from the designated insurer and arbitration provisions. Another item will make improvements to promote quick and fair settlements, by overcoming technical problems in cases involving multiple defendants. One of those improvements will ensure that - where the claimant arranges to settle with one of those defendants - that a defendant’s right to appropriate contribution from the other defendants remains open. These and other procedural refinements will be to the advantage of parties in individual proceedings, while also assisting the tribunal to manage its overall case load.

In the administrative area the Dust Diseases Board will be given a discretion to make financial grants to organisations or groups that provide support to dust disease victims. In conclusion, the proposals in the bill have attracted considerable interest and input from stakeholders since their initial announcement on 7 May. The draft bill has been substantially revised in response to submissions received. Various views have been expressed on the effectiveness and implications of some of the proposed provisions. It should be noted that the intention is that the implementation of those provisions will be monitored and if they are found to operate unfairly or unsatisfactorily they will be reviewed.

I acknowledge the useful contribution made by the Workers Compensation Advisory Council towards this legislation. It is important to note that the advisory council did consider the bill but no unanimous position was reached. The council did refer concerns of individual members to me and, as with all representations I received which did not affect the integrity of the bill, I took on board their individual views. Amendments of a technical nature were made to the bill accordingly. It was agreed that any issues of concern should be the subject of ongoing monitoring and review by the advisory council. That is an appropriate and reasonable position for the advisory council to take, given that its role is broadly to advise on and monitor relevant legislation, amongst other functions.

Members of the council include nominees of the Labor Council, the Employers Federation, Australian Business Limited, the Self-Insurers Association, the Construction, Forestry, Mining and Energy Union, the Nurses Association, the Australian Liquor, Hospitality and Miscellaneous Workers Union, the Australian Industry Group and the Retail Traders Association. Other organisations who participated significantly in consultations include the Asbestos Diseases Society of New South Wales, the Insurance Council of Australia, James Hardie Industries, CSR, Boral, Pioneer Concrete, the Australian Manufacturing Workers Union, GIO Australia, MMI Limited, Wallaby Grip, the Australian Business Chamber, the Law Society, the Bar Association and the Dust Diseases Board, as well as the WorkCover Authority and the Attorney General’s Department.

This is a good package that has been worked through to help people in a tragic situation to facilitate legitimate claims of workers who are generally dying of terrible diseases caused by the handling of asbestos - usually many years ago. I am sure all members of the House have a profound sympathy for all people affected. These are good, appropriate, balanced measures that will facilitate the processing of these claims and benefit the victims of these diseases. I commend the bill to the House.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [6.32 p.m.]: The Opposition does not oppose the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill. The concept of the Dust Diseases Tribunal was initiated by the Opposition. It was something very dear to the heart of the Hon. Neil Pickard and he pushed it as a policy issue before the 1988 elections. It was implemented by legislation introduced by the then Attorney General, the Hon. John Dowd. In principle the amendments before the House have the support of the Opposition although aspects of the legislation are of concern and I will outline those to the House.

An end to death-bed hearings is an aim all honourable members share. We have no argument with the Government’s position that those who unknowingly risked illness through the handling of asbestos should have their claims for compensation addressed quickly and with minimal trauma. Unfortunately, the amendments proposed by the Government will not achieve this. The amendments are fundamentally flawed. They will increase litigation and costs and lead to delays for claimants in New South Wales. The impact of these changes will worsen rather than improve the situation for claimants. It will reduce the chance for sufferers to receive prompt compensation.

It is one thing to espouse the need for reform; it is another to get it right. Despite advice from the Government’s Workers Compensation Advisory Council that the proposed reforms are flawed and despite the council’s recommendations for achievable improvements, the Government has decided to introduce this bill warts and all and without regard to the consequences for the very people it is trying to protect.

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The Government has chosen to ignore the members of the advisory council and their expert advice. These members - including the New South Wales Labor Council, the New South Wales Employers Federation, Australian Business Limited, the Self-Insurers Association, the Construction, Forestry, Mining and Energy Union, the Nurses Association, the Australian Liquor, Hospitality and Miscellaneous Workers Union, the Australian Industry Group and the Retail Traders Association - made several recommendations to improve the legislation so that it would achieve the Government’s stated objective of an end to deathbed hearings.

In an endeavour to see an end to deathbed hearings the Opposition supports the bill but seeks a number of amendments based on the advice of the advisory council to ensure it achieves this aim. Further, the Opposition calls on the Government to table the advisory council’s recommendations and to explain to the House why the recommendations of the council have been ignored. Our major concern centres around the likelihood that the bill in its current form will increase the time taken for sufferers of asbestos-related diseases to receive fair compensation. This will be caused by the abolition of the limitations period and the restrictions on relitigation which will force defendants to increase appeals. Accordingly, the Opposition seeks to remove three measures from the bill.

The no limitation period contained in new section 12A should be deleted. This section was included by the Government contrary to the advice of the advisory council. It would enable any claim currently out of time to be brought before the Dust Diseases Tribunal provided the claim has not previously been ruled upon by the tribunal or a court. In practice, this will increase the level of litigation and the delays in the Dust Diseases Tribunal by reactivating claims and the tribunal will be inundated with claims from other States and from outside Australia.

The removal of limitation periods is a radical, unprecedented and unjustified step which abolishes entirely a key tenet of the common law system. Limitation periods have been entrenched in statute since 1623. Australian courts have recently and repeatedly emphasised at the highest level the fundamental importance of limitation periods. In the 1996 case of Brisbane South Regional Health Authority v Taylor, which is reported in volume 70 of the Australian Law Journal Reports at page 866, Mr Justice McHugh said:

For nearly 400 years, the policy of the law has been to fix definite time limits (usually 6 but often 3 years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "where there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liability beyond a definite period.

The final rationale for limitations periods is that public interest requires that the disputes be settled as quickly as possible.

The overturning of the principle of limitations periods is a serious challenge to the future administration of justice in this State. What will be next? Will it be removal of limitations periods in the courts generally? Perhaps worst of all, this section will increase delays and suffering. The advisory council, including representatives of both employees and employers, recognised this and recommended to the Minister that the clause be removed. The Opposition agrees with that recommendation. Opposition members will move that the clause be deleted. Similarly, Opposition members will move that new section 25B, the ban on relitigation, be deleted in line with the recommendations of the advisory council.

Of all the measures in the bill, new section 25B has the most serious potential to increase litigation substantially to the detriment of both plaintiffs and defendants. It will create a situation in which each case before the Dust Diseases Tribunal is in effect a test case in which every important issue will have to be pursued to its last legal avenue, as an erroneous decision could stand in perpetuity and impact on all future cases. Restricting the ability to relitigate without leave of the tribunal is unfair and impractical. At the very least it does not take into account the adverse impact of the proposal on plaintiffs as well as defendants. Every party to a case is entitled to feel satisfied that there has been a fair hearing by an independent judge, based on the evidence put before the court. If this proposal is implemented, that right will be denied to subsequent litigants, who will be bound by the finding in a case to which he or she was not necessarily a party.

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The issue of relitigation has already received careful consideration by the common law courts. That consideration has given rise to principles - now long established - that appropriately balance the various competing public policy concerns. The existing common law principles of issue estoppel, res judicata, Anshun estoppel and abuse of process were developed by the courts to minimise excessive litigation. Those principles currently apply in the Dust Diseases Tribunal. Generally speaking, the principles provide that questions litigated between parties to proceedings cannot be relitigated between those same parties.

Recently the Federal Court held that the public policy which underlines Anshun estoppel did not support the extension of the principle to persons who were not parties to the earlier litigation. That was enunciated in the Federal Court in Foodco Group Pty Ltd v Northgan Pty Ltd. The current procedures for debating evidence before the Dust Diseases Tribunal provide a sufficient balance between the requirements of efficiency and of justice, including the requirement that justice be seen to be done. The existing procedures include section 23 of the Dust Diseases Tribunal Act, which confers on the tribunal wide powers with respect to informal proof and admissions, and section 25(3) of that Act, which provides:

Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties.

In the view of the advisory council - the advice of which the Government has chosen to ignore - this provides an appropriate balance between efficiency on the one hand and the right of a party to adduce further evidence and argument on the other. New section 25B also assumes that medical and scientific knowledge will stand still and that there will be no further advances in knowledge about dust-related diseases and the application of the law in respect of those advances. Had such a law existed in the past, those plaintiffs who are successfully pursuing claims for mesothelioma would have had no chance to receive any compensation, because nobody knew that asbestos was the cause of their illnesses.

Additionally, the parties will require leave of the tribunal in order to relitigate, which in itself will lead to increased litigation and costs, as dissatisfied parties will seek to appeal a refusal by the tribunal to grant leave. The application of this proposal will now either effectively freeze the tribunal in an outmoded legal and factual environment or require the tribunal to grant leave frequently to relitigate a point - or require frequent appeals by litigants - thereby nullifying the purpose of the reform. New section 25B will clearly increase the amount of litigation, have deleterious impacts on the ability of the tribunal to provide sufferers with prompt compensation and compromise the integrity of the legal system. For those reasons, the Opposition argues that the clause should be deleted.

The Opposition will also seek to have new section 8E of the Act concerning recovery of compensation from third parties deleted from the bill. Opposition to this clause also reflects the position taken by the advisory council, which agreed that the clause should be deleted. The Opposition’s concern about the clause rests primarily with its impact of making defendants liable more than once in a single case, and the flow-on effect that will have in ensuring that adequate resources are available to meet future claims as well as other potential sources of increased litigation.

Already defendants have contributed to the compensation fund of the Workers Compensation (Dust Diseases) Board, which is currently valued at $178 million. The clause will essentially force defendants to make the same contributions again. The net result will be to reduce the level of insurance cover available to meet dust-related claims and drastically increased legal costs. It is difficult to understand why the Government has insisted on such a measure when public records demonstrate that there is no financial justification for that. The board’s 1997 report notes that its estimated outstanding liability for claims is $216 million, as against current funds of $178.6 million. However, the board notes that "all outstanding claims are to be fully funded by levies" and, presumably, earnings on the current funds.

The Workers Compensation Advisory Council has advised that there is no reason for the inclusion of new section 8E. That provision has the potential to generate increased litigation between defendants seeking to recover costs, lead to the enjoining of further defendants and the board as parties to claims, and force the board to act as plaintiff in cases not otherwise pursued. That will clog the tribunal with litigation beyond its objective of providing appropriate and timely compensation to sufferers. The Opposition will therefore seek the removal of new section 8E. Beyond the key clauses outlined, there are provisions which have drawn concern from the Workers Compensation Advisory Council. In view of this, I urge the Government to table the council’s advice to ensure that it can be duly considered by the Parliament.

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There are provisions of the bill that are strongly supported by the Opposition. New section 12B will enable the claim for general damages to be maintained by the claimant’s estate. That clause will effectively eliminate the need for deathbed hearings, and makes the clauses outlined above effectively redundant. The Opposition supports legislation that ends deathbed hearings and reduces the pain and suffering of claimants. For that reason the Opposition will not oppose the passage of this legislation but, rather, will seek to make amendments at the Committee stage which improve the delivery of the bill’s intent. When the Government introduced amendments to the workers compensation legislation to establish the advisory council the Minister said that the purpose of the council was that all legislative amendment proposals, including regulation-making proposals, be formulated by the advisory council and recommended to the Government.

It is for that reason that the Opposition takes the view that the Parliament should be in receipt of formal advice on this legislation from that committee before final decisions are made. I therefore move:

That the question be amended by omitting "now" and inserting after "time" the words "after the receipt by the House of the report of the Advisory Committee on Workers Compensation".

The motion before the House would thus read:

That this bill be read a second time after the receipt by the House of the report of the Advisory Committee on Workers Compensation.

I believe that the committee could report quickly to the House so that the second reading of the bill could be completed by the middle of next week.

The Hon. FRANCA ARENA [6.48 p.m.]: I give my full support to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill. The main purpose of the bill is to amend the legislation for compensation for workers suffering from serious dust diseases such as mesothelioma, asbestosis and silicosis. I have examined the bill in great detail and have listened to and received presentations from many people. I have had the pleasure of meeting representatives of the Asbestos Diseases Foundation of Australia and from James Hardie and CSR. All parties have put forward their point of view, to which I listened carefully. I have reached the conclusion that this bill is good.

I fully support this legislation and I would like it passed in its original form. I will not be supporting any of the proposed amendments. The bill maintains the recognition of the special category in which asbestos diseases victims find themselves. I have met and received telephone calls from many sufferers and their families. I hope that the proposed legislation will go a long way towards ensuring that their pain and suffering during the years is attenuated.

[The President left the chair at 6.50 p.m. The House resumed at 8.30 p.m.]

The Hon. Dr A. CHESTERFIELD-EVANS [8.30 p.m.]: The Australian Democrats support the thrust of this bill with considerable passion. It is worth looking at the history of asbestos and its management as it is illustrative of the way in which our society works. The definition in a medical sense of pneumoconiosis in terms of asbestosis was made in 1930 by Price and Merewether in a British medical journal. It was not until the late 1950s that mesothelioma’s association with asbestosis and asbestos exposure was observed, although it was recognised some time before that period that asbestosis predisposed sufferers to cancer more than some of the other dust diseases such as silicosis. In fact, the discovery of silicosis and its link to coal mining disease and tuberculosis occurred last century.

In 1961 mesothelioma was defined as a separate disease related almost exclusively to asbestosis. It might be noted that the Wittenoom asbestos mine was in operation from 1944 to 1966. The mine actually started 14 years after definition of pneumoconiosis, known as asbestosis, and did not close until five years after mesothelioma was defined as a separate disease related to asbestos exposure. Asbestos continued to be used in fibro cement, or asbestos cement as it was often called, until 1983 under the name Hardiplank. Interestingly, at Wittenoom a number of doctors who were extremely favourable to the industry seemed to continually fail to diagnose respiratory diseases associated with exposure to asbestos.

I am afraid the inspectorate, which was the equivalent of WorkCover, sadly was less than diligent about reducing dust exposure for the workers of Wittenoom, in the Pilbara region of Western Australia. People went to work there under fairly difficult conditions in order to make money quickly and then went elsewhere to settle down with their families. Sadly, life for those exposed to asbestos in Wittenoom has become a nightmare and more than 50 per cent of them, according to some studies, appear to be destined to die of asbestos caused diseases. I have worked up in the Pilbara but I have not worked near an asbestos mine in New
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South Wales. Certainly the Wittenoom asbestos mine has had the most attention. It is also significant that companies based in New South Wales own those mines.

As a child I helped when sheds were built in the backyard. My father used to draw a line on the fibro and saw along it. He used to ask me to blow the dust away as he was sawing. I did not like the smell of the dust. It seemed to me that it would not be good for me. My father used to ask me to blow more often because I did not like taking breaths. Eventually I breathed one side, turned back and blew. I got a stiff neck from turning my head so often as the asbestos cement was sawn. I doubt that I am a high risk, but many people, especially those in the building trades, those who work within boilers as employees with the State Rail Authority repairing freights, and people in many other industries are at risk.

In factories in Marrickville where asbestos ropes and cloths were manufactured, workers were exposed to huge amounts of asbestos; so much so that there were asbestos dust halos around the lights. As a medical practitioner I am aware of the incredible harm caused by dust diseases. Silicosis in its more virulent forms - particularly that caused by Sydney sandstone, which is very high in silica - can cause a healthy person to become a respiratory cripple in only a few months. Asbestosis and silicosis are debilitating lung diseases. When working as an after-hours doctor in winter I have seen people hunched over their kitchen table, resting on their elbows and gasping for breath. Even today on building sites some people do not wear dust masks, and yet this House is debating these diseases.

I have seen people dying from various forms of lung cancer. Mesothelioma is among the worst of them. There is some argument as to whether they start as pleural plaques; many people exposed to asbestos have pleural plaques that do not seem to progress. My medical opinion is that they are pre-malignant but do not always progress. When they do, the course of mesothelioma is fatal within 12 months. The cancer grows on the lining of the lungs, between the lung and the chest wall. As it does, it simply squeezes the lung into a smaller and smaller space and effectively crushes it, depriving the person of the ability to breathe. As this happens the disease invades the chest wall.

Anyone who has suffered a broken rib whilst playing football will know how painful a single stimulation of an intercostal nerve can be. The intercostal nerves run between and inside the ribs, and normally they are protected by the ribs. Mesothelioma gets to the nerves on the inside of the ribs and the pain is unbelievable. That is the type of disease this House is dealing with. Those involved in the asbestos industry were happily setting up mines years after the facts about pneumoconiosis were known and they continued to operate the mines after information about mesothelioma had been published in medical journals. Those people had a duty of care and should have known about the diseases and taken appropriate action.

Now, 68 years after pneumoconiosis was discovered, Opposition members are talking about not being able to afford compensation for people who have been treated so negligently, and they are raising an issue about the six years statute of limitations. Those who were affected were supposed to take action within six years; 68 years later we are trying to get them out of their trouble by helping to pay for the problems that the companies involved created. I am extremely disappointed in Opposition members who are attempting to introduce amendments related to the statute of limitations in an effort to protect the companies that caused these difficulties.

I was examining State Rail and State Transit Authority personnel. I have already told honourable members about the 47-year-old man from the Marrickville factory. All of his friends who worked in that factory are dead. When he has his annual medical check up I tell him that he can have an x-ray, but if it finds anything it will not make any difference; there is not much that can be done. He says that he understands.

Today a 37-year-old man from the Asbestos Diseases Foundation came to me. He is an exceptionally nice fellow who has a wife and young children. He has mesothelioma. I remind honourable members of the old sick joke that sometimes doctors tell to defend themselves. The doctor says, "I had to give a bloke advice today. He is dying." When asked, "What did you tell him?" the doctor replies, "Just the usual thing: ‘Have you got a will? If not, make one and, by the way, don’t buy any LP records.’" It is not good enough when someone with mesothelioma comes to a doctor looking to all the world as though nothing is wrong with him and the doctor says that he noticed the person was a little short of breath but that an untrained person would not have noticed. That man has a death sentence over his head, yet members opposite are arguing about whether the companies can afford to pay compensation.

If members opposite believe in the free market, they will believe in the freedom of people to
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do as they want. If companies make millions of dollars, that is fair enough: their astuteness earned them that money. The other side of the coin is that if companies killed hundreds of people through total and absolute indifference they should pay for that in the same measure that they made others pay. I wonder why we are talking about compensation. In my view those companies should be on trial for murder. I am not a public prosecutor and I am uncertain as to which crime they have committed. They showed complete negligence, ignored the medical evidence; they got doctors who were nice and tame and would not say anything; there was a nod and a wink to the inspectors so that there would be no interference; and away they went. Dust levels were completely unacceptable, and were known to be unacceptable to anyone who had taken the slightest interest in the subject.

The Hon. M. R. Kersten: Murder is deliberate.

The Hon. Dr A. CHESTERFIELD-EVANS: These were quite deliberate actions, because the companies knew what people were exposed to. In any event, if they did not know, they should have known. In respect of the asbestos industry it is worth noting that Johns-Manville, the big asbestos company in the United States, has gone into liquidation. Its profits and any earnings have been put into a trust for the people whose lives were ruined and for their dependants. Lobbyists for similar companies in New South Wales are asking for a better deal and have found a willing ear in members of the New South Wales Opposition, who have foreshadowed amendments to the bill.

The only parallel to the asbestos industry is the tobacco industry, which gets a fair run in this House as well. There has been discussion about the removal of the limitation. It would be a nasty legal precedent if people had only six years in which to lodge a claim. The latent period for this disease can be 30 years. How could people possibly have made a claim within six years? People injured in motor vehicle accidents know within a nanosecond that they have been injured. That has not been the natural history of dust diseases: people are not necessarily aware of their rights or of the exact cause of their shortness of breath. One of the prime movers in understanding asbestos related diseases has been the Dust Diseases Board.

People who are respiratory cripples say that everything is alright because they have a dust diseases pension. Those pensions are not worth much, but those who receive them are pathetically grateful. Their lives have been ruined and they have difficulty breathing - I speak principally about those with silicosis, who can continue for years with shortness of breath. Some of the asbestosis victims can do so also, unlike those with mesothelioma. They realise that they will receive their pensions until they die and that their families will be looked after when they are dead. That is some reassurance.

When members of this House argue about the workers compensation system, the day in court, solicitors, or the conflict and draining effect they have on people who are injured, I confess that I am very reassured by the model of a tribunal that guarantees that someone who has a disease will get the pension.

If I have to choose between a bureaucracy's medical model or a legal model I know which I would prefer - but everyone is scared of the costs. In the Dust Diseases Tribunal the diseases are well circumscribed and their causes and effects are very clear. If while driving home after debating in this House until God knows what hour I cause an accident, a negligence claim will be made against me; no doubt about it!

If, however, I manage a multimillion dollar corporation, do not read the journals and ignore the consequences of my actions in relation to dust diseases, I would not be negligent. No-one would challenge me or upbraid me, because there is no prosecution mechanism for that. I ask: Why not? The Opposition is debating costs and funds, but it should be debating the consequences for the managers at James Hardie and CSR who expose their workers to those diseases. What are the consequences to the captains of industry?

The bill attempts to correct some anomalies. If the head office of a business is in New South Wales, that is where the responsibility lies. Other contracts continue to run on existing corporate entities, and their obligations to the employees whose lives have been ruined must also have that continuity. The Democrats are sad that this House does not act against the rich and the powerful in the way it should; but the House is quick to act on any benefit gained by the poor and the weak. That is simply not the way society should be and it is not the way it should be led. I am disappointed at the Opposition’s amendments. The Democrats will support the bill and I will do everything I can for a fair and just Australia. This bill is a small step in that direction.

The Hon. P. T. PRIMROSE [8.53 p.m.]: I do not have the medical knowledge of the Hon. Dr A. Chesterfield-Evans, who presented with great
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eloquence his concerns about dust diseases and their effects. But I doubt that any member of this House does not know of friends, relatives, or others who have been victims of dust diseases. On a personal level and as a community health social worker I have known people who have suffered from asbestosis. After the doctors have told a person, "You are going to die", it is the social workers, nurses, doctors and others who are involved, along with the deceased’s family, for a long time after death has occurred in trying to deal with this problem.

Everyone in the community is affected, everyone is touched. The Hon. Dr A. Chesterfield-Evans reinforced the absolute and continuing importance of the role played by trade unions in relation to occupational health and safety. Unions such as the Amalgamated Metal Workers Union, the Maritime Union of Australia and the Construction, Forestry, Mining and Energy Union are directly involved on a day-to-day basis in fighting unscrupulous employers and subcontractors, people who do not regard these issues as real. Yesterday I was dealing with people who do not regard safety as a matter of concern in what amounts to an increasingly competitive and increasingly free market environment. I also gleaned that message from the comments of the Hon. Dr A. Chesterfield-Evans.

The main purpose of the bill, of course, is to amend the legislation to provide compensation for workers suffering from serious dust diseases such as mesothelioma, asbestosis and silicosis. The amendments recognise the special nature of dust diseases by improving the common law rights of victims who contract such diseases at work, making technical changes to expedite and simplify hearings of cases in the Dust Diseases Tribunal, particularly by limiting deathbed hearings, and making other refinements. The bill was distributed as an exposure bill to stakeholders and extensive comments were received. In addition, a roundtable discussion was held with all interested stakeholders and the exposure bill was revised following the comments that were received.

One of the bill’s main aims is to increase the fairness of common law entitlements for dust-related conditions in regard to the part of damages payable for pain and suffering. If a claimant dies before the Dust Diseases Tribunal has made its judgment the present law operates to automatically extinguish the part of the claim related to damages for pain and suffering. Medically, the most serious type of asbestos-related condition is mesothelioma; it is a form of cancer starting in the lungs or surrounding organs which seems to invariably lead to death within a relatively short period, often 12 months or less. This has meant that claimants, in effect, often engage in a race against time to have their pain and suffering damages claim finalised before death for the benefit of their family. Despite commendable efforts by the tribunal to expedite such hearings a number of deathbed hearings have resulted in claimants in extreme situations struggling to complete their evidence.

The bill aims to adopt a more humane approach and provides that where a person with proceedings pending before the tribunal dies from a dust-related condition the person’s estate can pursue recovery of the damages entitlement for the deceased person’s pain and suffering. Another significant proposal is the removal of current time limits on common law claims for dust diseases. The existing provisions of the Limitation Act, which lay down a basic three-year limit for claims running from the time an injury is received, do not easily fit the reality of the gradual onset of dust diseases. That Act allows the tribunal discretion to extend the three-year and related time limit provisions based on factors such as the claimants having been unaware of the disease or its cause or extent.

Application of such provisions, however, takes time and additional expense for claimants who may have a short life expectancy. In recognition of the particular circumstances applicable to dust diseases it is considered appropriate to remove the requirement to establish compliance with technical and arbitrary provisions on time limits for these claims. I am sure many members received a letter from Ms Ella Sweeney, the President of the Asbestos Diseases Foundation of Australia, dated 10 November, which stated:

New South Wales has the highest rate of asbestos disease in Australia. That is to be expected given the extent of manufacturing, building, construction and refinery processes that have occurred in New South Wales over many years.

The incidence of asbestos disease in this state will not decline for probably ten to twenty years.

Many thousands of ordinary citizens of this state and their families will be affected by asbestos disease in the future. It is fair and proper that those people be properly compensated in a sensitive and dignified manner. The Bill will achieve this. Claims in the Dust Diseases Tribunal should be disposed of quickly, efficiently and in the most cost effective manner in order to reduce costs for everyone; claimants, employers and insurance companies. The Bill will achieve this. Funds should be made available to enable research to be carried out to find cures for these horrible diseases. The Bill will achieve this . . .
I implore you to support the Bill . . . I thank you for your support in relation to this most important piece of legislation.

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I could not put that appeal more eloquently on behalf of the victims and their families. Opposition members claim that people do not understand the bill and what it is about. People do understand the bill. The victims and their families, the lobby groups and the unions support this bill. The only people who do not seem to understand the implications of the bill are members on the Opposition benches, for they have indicated that the Opposition will move amendments that will water down this extremely important bill. I hope that their amendments, like so much of the Opposition’s multinational rhetoric, will be disposed of in the waste bin of history.

The Hon. I. COHEN [9.01 p.m.]: I strongly and enthusiastically support the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill. The Attorney General deserves congratulations on the introduction of the bill. Honourable members have been briefed by the Asbestos Diseases Foundation of Australia, which fully supports the bill. Some members of the foundation told us tragic stories about asbestos victims. It was quite a moving experience to hear about the suffering of people who have worked honestly on building sites and so on. We heard some of the history of the Wittenoom mine. Later I will say more about that mine and the terrible afflictions wrought on the Baryulgil Aboriginal community by a legacy of asbestos.

It was brought home to those of us at a meeting of the Asbestos Diseases Foundation of Australia that an average person on a building site on the central coast working with Hardiplank now has a death sentence related to asbestos disease. Until now, in many instances such victims have not been able to pursue to determination their compensation claims and obtain justice for the terrible wrongs done to them by this horrific disease, contracted after working for many years in a job that involved contact with dangerous materials.

The law as it stands at the moment sometimes ends in the awful situation of victims of the disease having to spend the last of their dying days in court or at bedside hearings, instead of spending those last precious moments with their families and friends. It is difficult to imagine how horrible it must be to go through that process, both for the dying person and for the family and friends. The children also suffer; many of the affected workers, predominantly men, die at an early age from this terrible disease. It is hard to imagine how horrible this experience must be.

One such dust disease is mesothelioma. It is caused by asbestos dust. Mesothelioma is a cancer of the lining of the lung. The average life expectancy of a mesothelioma victim is between six months and 18 months from diagnosis. Death caused by mesothelioma has been described by respiratory specialists in evidence before the Dust Diseases Tribunal as a most miserable death. The pain that victims feel is, according to an expert, Dr Schneeweiss, one of the most severe pains known to humans. Every breath is associated with severe pain and as a result pain-killing medication is provided. That in turn has a secondary effect of reducing the capacity of the respiratory centre in the brain to function normally.

I cannot imagine how horrifying the disease must be for those who are suffering from it. Victims in extreme pain, struggling to maintain lucidity, against a background of heavy narcotic analgesics, are examined and cross-examined, often at their bedsides in their homes or in a hospital ward. This procedure is necessary because the common law specifies that the case of the person who dies while still fighting for compensation for a dust disease dies with the person. The families of dust disease litigants who die cannot continue to fight the case, even if the victim was on the verge of winning. The bill ensures the survival of dust disease common law damages entitlements after the death of affected workers, for estates of the deceased workers.

Another excellent aspect of the bill is that it will remove the time limits on common law damages claims for dust diseases. It will do this by removing the effect of the Limitations Act 1969 on claims in the Dust Diseases Tribunal. Conditions suffered as a result of exposure to dust have a long latency period. The average latency period for mesothelioma is 37 years. The diseases have a gradual onset. Many victims have not known that they are able to take action in the courts once the disease is diagnosed. Victims may become aware of their rights through the media, the Asbestos Diseases Foundation of Australia or by other means and then come forward to make claims.

It is inappropriate that the Statute of Limitations operates in respect of these kinds of cases. One can only imagine the impact on an individual and the family when this particular cancer is diagnosed. How difficult it must be for them to gather their wits together and steel themselves for the task of undertaking a process through the courts rather than directing their energies to dealing with the calamity that has befallen them on becoming aware of the likely events following diagnosis. I pay tribute to the many victims who have fought through the courts. Theirs has been a real case of bravery in the face of terrible pain and suffering.

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The bill also will remove an unfair anomaly involving the deduction of workers compensation paid by the Dust Diseases Board from damages payable by a negligent party. The bill restores the status quo. This legislation is very timely. I would have welcomed legislation to enable the laying of criminal charges against the executives of James Hardie, CSR and others who are involved in industries that knowingly deal with these life-threatening materials. I am not a doctor, but I listened with great interest to the contribution of the Hon. Dr A. Chesterfield-Evans, who outlined some of the detail of the disease. From documentaries and from information gleaned from activities that go back to the days of the Wittenoom mines, the dangers of this material was known to the industry. It was not so much a case of ignorance of the dangers and effects of asbestos.

For many years the community has understood the impact of asbestos. Though criminal charges are outside the leave of the bill, in my opinion it would be appropriate to introduce crimes legislation to bring these criminals to justice. Like executives of tobacco companies, the executives of companies involved with these dangerous workplace substances have been aware of the damage that those substances can cause over a long time. Those who make substantial profits from the labour of people who worked in asbestos mines and on unhealthy building sites have turned a blind eye to the realities and to the horrors of asbestos poisoning and cancers.

It is important to consider issues that remain totally unresolved today in New South Wales. I should like to read from Hansard extracts of a speech made by Mr Markham, the member for Keira. That member has taken a great interest in the Aboriginal people of this State, and he is to be commended for that. In his speech on Thursday, 16 September 1993, Mr Markham spoke about an allocation of $1,175,000 for Baryulgil, an Aboriginal community in the north of New South Wales. Mr Markham said:

. . . not one penny has been spent on the rehabilitation of that mine site at Baryulgil.

Aboriginal people worked in the Baryulgil mine without protective equipment. I understand that the fill used on Baryulgil Square contained asbestos. Many people have died and many are still suffering as a consequence of working at the Baryulgil mine. A community continues to suffer while Baryulgil is not rehabilitated. Mr Markham further said:

The Government must act expeditiously on this matter. The problem will not go away. While ever New South Wales has a mine site in the condition that the asbestos dump at Baryulgil is in, how can anyone have faith in the Government ensuring that other mining companies throughout the State will rehabilitate mine sites at the end of their lives?

I congratulate Mr Markham for having raised this issue back in 1993. Mr Causley, the former member for Clarence -

The Hon. R. S. L. Jones: Whose side was he on? Was he on the side of the victims?

The Hon. I. COHEN: It is difficult to say which side Mr Causley was on. Incidentally, Baryulgil is in the electorate of Clarence. Mr Causley said:

Tenders for the rehabilitation of Baryulgil are being assessed. It will cost about $1.5 million to rehabilitate the site. That shows that rehabilitation is not cheap.

What a comment to make when we are dealing with people’s lives, including those of the young people who play near the asbestos dump. Although Mr Causley claimed that rehabilitation of the site will not be cheap at $1.5 million, a community is suffering. That claim is incredibly insulting. The situation has been ignored for far too long; something must be done, and done immediately. I congratulate the Government on introducing this bill.

I am concerned about the amendments foreshadowed by the Opposition. They are sinister in their potential to continue the suffering of those who have this terrible disease. The Opposition should reconsider its proposed amendments. It has been reported in the media that this bill may not get through the upper House. I am confident that with the support of the Government and the crossbenchers the bill will be passed by this House, and passed rapidly. I ask the Opposition to reconsider its amendments which are an insult to humanity and to the people suffering from these diseases.

The Hon. DOROTHY ISAKSEN [9.12 p.m.]: I have had a couple of experiences in relation to this bill. Some years ago the Hon. Franca Arena and I were on the Women’s Advisory Board with Joyce Clague. Joyce took us to the north coast to visit the communities with which she was connected. One place was Baryulgil, where Joyce introduced us to some local Aboriginal families. Few families had not been affected by the asbestos mine there. Many families had husbands who had already died or were affected by a dust disease. No compensation was available in those days. Shavings from the asbestos mine were part of the playground at the school that the children attended. Some of the stories were horrific. I remember being terribly moved and
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concerned about Baryulgil and how little had been done to recognise the danger to which the Aboriginal workers in the mine had been exposed.

Whenever people talk about Baryulgil I remember that experience. Little did I realise that I would be involved indirectly with dust diseases. For many years my husband was a wharfie - it is 30 years since he left the wharves. About 10 years ago he received a letter from the Dust Diseases Board asking him to undergo an examination. Every 12 months he must have a check-up. I asked him why he needed a check-up when there was nothing wrong with him. He told me that he used to lug hessian bags of asbestos on his shoulders on a regular basis. He and the other wharfies used to throw the asbestos around and play with it because no-one told them that it was dangerous. Although the Maritime Union of Australia has since imposed strict work conditions, in the days when my husband worked on the wharves no-one considered that the workers should have a shower before they went home at the end of the day.

Workers came home with asbestos on their bodies, and their wives threw their asbestos-covered clothes into the washing machine with the rest of the washing. Those fellows must now have regular check-ups and there is always the danger that they will be told they have a shadow on their lungs. They know that once that shadow appears their life expectancy will be dramatically shortened. People worked under those conditions because the bosses did not give a damn about the dangerous working conditions. The workers were criticised if they wanted showers, protective clothing and the sorts of things that people take for granted today. Those men are now dying because of the conditions in which they worked. I fully support any proposed legislation that will in some way recompense those men for an unknown and uncertain future.

The Hon. D. F. MOPPETT [9.16 p.m.]: I had not intended to speak in this debate because I have no expertise in this area and I do not have carriage of this matter on behalf of the Opposition. However, like other honourable members in the Chamber tonight and, indeed, the public in the gallery, I was impressed by the vehemence with which the Hon. Dr A. Chesterfield-Evans spoke about this issue. The contributions of the Hon. I. Cohen and the Hon. Dorothy Isaksen were convincing to those who listened. The only aspect with which I would cavil is the way they inferred that people were responsible for the conditions visited on workers and residents, especially in Baryulgil and, to a degree, Wittenoom, and that those responsible were conscious of the dangerous working conditions and cynically disregarded the safety of the workers.

We have become more aware and have gained a better understanding of occupational hazards as medical science has revealed them throughout the twentieth century. We probably became aware first of the deterioration in the health of miners who simply regarded it as their lot to be dusted in the lungs, as it is known. Sadly, all the sufferings described so vividly by honourable members tonight were the experience of people at the beginning of this century. I do not think anyone understood how the physiological changes taking place in people’s bodies could be overcome. Fortunately we have come to grips with those changes and we understand them better.

During the time I was in the navy reserve, to which I have sometimes referred, I sailed on ships that had asbestos sprayed on the deckheads, the bulkheads and so on. Most sailors thought the asbestos was a blessing, because without it the vessels were just absolute kettles. The deckheads dripped continuously on the sailors during hot weather. Asbestos was considered to be an improvement. Asbestos had been regarded as a miracle mineral and new deposits of asbestos were being actively sought for use as insulation in domestic situations, in stoves and so on, and as lagging around pipes in homes. The uses for asbestos industrially were unending for building materials to which reference has been made. It was only later that people began to realise that it might be the cause of health problems.

I cannot believe that the people involved in the development of this technology had, as someone suggested a moment ago, a sinister plan to make people suffer. I refute that idea, because it has no foundation. I compare it with the claims that were made about the Red Cross Society and investigated by the Standing Committee on Social Issues. It was suggested by some people - and I can understand why they felt so strongly about it - that the Red Cross Society acted in some perverse way by continuing to supply blood transfusions, especially to haemophiliacs, despite the assertion that the scientific world had the knowledge that HIV was a blood-borne disease. It was obvious to the Standing Committee on Social Issues that there had been due diligence on the part of the Red Cross. In fact, the Red Cross Society was one of the first health organisations to adopt the practice of screening blood.

The time delay in adopting that practice resulted in immense suffering being caused to a whole group of people, but it was certainly the considered view of the Standing Committee on Social Issues that no blame could be attached to the Red Cross Society. It had not acted in some sinister
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way to ignore warnings that were coming from scientists. Indeed, within the scientific community those conclusions were still provisional. They were not accepted by the medical profession. The suggestion that the mining and the remedial works in Baryulgil were undertaken in the clear knowledge that they would destroy people’s lives is something I cannot believe. Finally, although his comment came by way of an answer to an interjection, I do not think the Hon. I. Cohen set out to accuse the Hon. Ian Causley of trying to make little of the problems of the people in Baryulgil when he referred to the costs involved.

The Hon. I. Cohen: I just quoted him.

The Hon. D. F. MOPPETT: The honourable member quoted him, but it was only a little snapshot of what he said. Ian Causley, the member who represented those people, was most concerned about their future. The fact that it was expensive may have been the reason for his argument that money was needed. To take just a selective quote like that and suggest that the Hon. Ian Causley was cynical about the health of the people of Baryulgil is quite wrong. I refute that from my knowledge of the man and the circumstances of Baryulgil, and of the time it was realised that these people where exposed to danger.

The Woods Reef mine was one of the last mines opened. In recent history people felt it was an appropriate commercial enterprise. The Government gave them permission. The Department of Mineral Resources and all the people who license these enterprises agreed that the mine should go ahead. Just as that mine was approaching its peak of development, people worldwide realised we had to find something else, that the risk was a direct one and that we could not go on using asbestos in any application where loose fibres were likely to be inhaled.

Not long ago I spoke of the recent developments in the treatment of asthma. People who wear gloves when examining others to avoid the danger of blood-borne disease were finding that the innocent talcum powder that is put in rubber gloves so they can be put on and taken off easily was the suspected cause of a fatal condition. Johnson and Johnson, or whoever manufactures this powder, did not intend to put a dangerous chemical into the gloves so that people would be knocked about. Of course they did not. As soon as they learnt of the dangers they did something about it.

Honourable members can deal with this bill without making all these lurid claims. The Opposition wants to make sure the legislation works, that it is not rushed through in a flood of emotion that will require later adjustment to make it work. Members of the Opposition share the sympathy that has been extended to the victims of all these occupational diseases, particularly silicosis and mesothelioma, but we do not want to see this legislation rushed through in a counter-productive way.

The Hon. R. S. L. JONES [9.25 p.m.]: The Hon. D. F. Moppett just mentioned the spraying of asbestos on naval vessels. Who can forget the dignity and bravery of former State Governor David Martin, who was killed by asbestos. He stood here with such dignity when he knew he was only a few days from death. That man was killed by one of these companies. They knew in the early 1930s -

The Hon. D. F. Moppett: He did not say that.

The Hon. R. S. L. JONES: He was a gentleman. If he had not been such a gentleman he would have said that. He was killed and those companies are responsible. They have known for decades that this substance caused these problems. As late as 1983 they were still producing fibro that contained asbestos. Today honourable members met a man aged 37 who is seriously ill. I hope he has years to live, but I do not believe that that is the case. He looked very well, but he may be facing death within the next few months.

We met two other people who had lost loved ones as a result of the activities of these companies. It was tragic. I had a lump in my throat, as had other honourable members, when we met these people. We wanted to cry on the spot for what they and hundreds of other people have been through over many years. People are still dying and will go on dying for the next 10 or 20 years as a result of the activities of these companies.

The people in charge of these companies should have put an end to asbestos decades ago. They knew what they were doing. They knew that they were putting profits before people’s lives. They did not care about people; they cared only about profits. This is one of the most immoral stories of the twentieth century. It is almost as immoral as the story about the tobacco companies. The same kinds of people run tobacco companies. The other night I had dinner with the Hon. Nick Greiner. He said his daughter is addicted to tobacco. She said to him, "I will go on smoking as long as you go on pushing it." His own daughter is addicted to his products.

These companies have been killing people for decades with this stuff. It is about time they paid and if my vote counts for anything I will make sure they do pay. I do not care if it costs New South
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Wales $300,000 per settlement. The honourable member for Gosford in the other place said that the average settlement is $300,000 in New South Wales and only $175,000 in Victoria. That is not true. I have a letter here from John T. Rush, QC, that explains the situation quite clearly. He said:

Mr Hartcher states that the average settlement in New South Wales is $300,000 and in Victoria $200,000. The one variable in the assessment of damages for an asbestos victim is damages by way of pain and suffering, loss of enjoyment of life. In New South Wales the Court of Appeal in the past 12 months in a number of cases has indicated a range of damages for pain and suffering, loss of enjoyment of life between $90,000 and $130,000.

That is insufficient in itself. The letter continued:

In Victoria juries assess damages in this type of action. Juries have consistently awarded damages far in excess of the range that the New South Wales Court of Appeal has sanctioned.

Because those juries understand that people have suffered. The letter went on:

In significant cases over the past 10 years it has been clear from the sum of damages awarded that juries in Victoria have assessed such damages consistently in excess of $200,000 and up to $250,000.

The honourable member for Gosford should get his facts right before claiming that the damages are worth $200,000 or $300,000. How can one put a dollar value on a life? How can one value the life of someone who dies, leaving behind a widow and children? These widows will spend 10, 20, 30 or 40 years on their own, perhaps never to marry again. How much is that worth? Is $200,000 too much? No amount of money could compensate a woman for the loss of her husband at the age of 35.

It is immoral of the coalition to push these amendments. It is immoral that the coalition is being conned by the companies. Come election time will there be some kind of reward for the coalition - perhaps some donation? Is that what the companies are offering? What are the companies offering in return for support of the amendments? Perhaps next year we will examine the returns and find out whether the companies have provided the coalition with money for its election campaign. What is the coalition’s motivation in accepting these amendments from James Hardie Industries Ltd and CSR?

The Hon. D. J. Gay: Point of order: I ask the Hon. R. S. L. Jones to withdraw that allegation. Even given the extent of the allegations he makes in the House from time to time, that allegation is absolutely disgraceful. I would not think that he honestly believes that any Opposition member in this House would be party to any such thing. I request the honourable member to withdraw that allegation.

The Hon. R. S. L. JONES: To the point of order: I was not making an allegation. I was asking the question: What is the motivation of the coalition?

The Hon. D. J. Gay: Just withdraw it.

The Hon. R. S. L. JONES: I will not withdraw it. I asked a question and I ask you to answer the question.

The PRESIDENT: Order! I refer the Hon. R. S. L. Jones to Standing Order No. 81, which states:

No Member shall digress from the subject matter of any Question under discussion; and all imputations of improper motives, and all personal reflections on Members shall be deemed disorderly.

The member may not have done so intentionally, but I consider that he implied that members of the coalition may have been influenced in some way, perhaps for reward, by companies involved in this matter. That is an improper reflection on the motives of honourable members. I suggest that the member either withdraw his comments or rephrase them.

The Hon. R. S. L. JONES: I have referred to Standing Order No. 81, and I withdraw my comments. One might say that I feel very passionately about this issue, and in my passion I cannot understand that any person could possibly be inclined to move these amendments. I cannot understand that anybody would accept these amendments when it is known that they would gut the legislation, when it is known that victims will have to wait for compensation and that some widows may miss out. How could members of the Opposition move these amendments? I can think of no explanation for that. Perhaps one day we will find out.

The Hon. D. J. Gay: So far as I know, not one of the amendments will mean that widows miss out.

The Hon. R. S. L. JONES: Then perhaps the Hon. D. J. Gay has not read his own amendments. I think it would be a good idea for him to spend some time reflecting upon his amendments. Victims have suffered a grave injustice for all these years. That injustice is finally being put right by the Government. I appreciate the fact that the Government has introduced this bill. The proposed legislation is excellent - the provisions are
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compassionate and humane. This bill may cost James Hardie and CSR a few million dollars, but what are those few million dollars when it comes to lives? Tobacco companies in the United States are paying tens of billions and hundreds of billions of dollars in compensation. If CSR and James Hardie are forced into liquidation as a result of paying compensation claims, then so be it.

The Hon. Patricia Forsythe: Oh!

The Hon. R. S. L. JONES: Yes, so be it. If they go into liquidation as a result of paying compensation to these people, then so be it. Those companies should not have got themselves into the situation of having to pay compensation in the first place: they should have done the right thing decades ago.

The Hon. D. J. Gay: What about the people who have not yet been diagnosed? If you send those companies into liquidation, what will happen to those who have not been diagnosed?

The Hon. R. S. L. JONES: Perhaps the Government will have to pick up the tab at a later date. All I am saying is that if the result is that hundreds of millions of dollars in compensation has to be paid then so be it, because nothing can pay for the agony and anguish of sufferers or of their widows and their sons and daughters who have been deprived of their loved ones because of asbestosis and mesothelioma.

Reverend the Hon. F. J. NILE [9.34 p.m.]: The Christian Democratic Party supports this bill, which will amend legislation relating to compensation for workers suffering from serious dust diseases such as asbestosis and silicosis. The amendments recognise the special nature of dust diseases by improving the common law rights of victims who contract such diseases at work, making technical changes to expedite and simplify the hearing of cases in the Dust Diseases Tribunal - in particular, limiting deathbed hearings - and making other changes. The bill was distributed to stakeholders as an exposure bill, and extensive comments were received. In addition, a round-table discussion was held, to which interested stakeholders were invited. The exposure bill was revised following comments received.

The bill will amend the Workers’ Compensation (Dust Diseases) Act to remove time limits on common law damages claims for dust diseases; ensure that a worker’s dust disease common law entitlements survive after his or her death, and are payable to a diseased worker’s estate; improve arrangements for the settlement of damages claims for dust diseases involving multiple wrongdoers; remove an unfair anomaly involving deduction of workers compensation paid by the Workers Compensation (Dust Diseases) Board for damages payable by a negligent party and restore the status quo; streamline claim procedures when a worker’s employer is defunct; minimise litigation costs and delays in multi-insurer common law damages claims in the Dust Diseases Tribunal; enable the dust diseases board to recover compensation from third parties; and further minimise litigation costs and delays in the Dust Diseases Tribunal by streamlining procedures involving the reuse of evidence.

Two additional members of the Workers Compensation (Dust Diseases) Board will be appointed to represent the building industry, employers and workers respectively. Financial assistance from the fund under the Workers’ Compensation (Dust Diseases) Act will be provided to dust disease victim support groups such as the Asbestos Diseases Foundation of Australia. As other honourable members have said, the mining and the wide use of asbestos in New South Wales ceased some years ago. However, workers who were employed in jobs that involved the handling of or exposure to asbestos, and their families and others, are still paying a tragic price in illness and suffering. This bill deals with tragedies that have resulted from the use of asbestos.

When asbestos was discovered it was thought to have a particular value. Without taking into consideration those who dealt with the material in construction and building work, the effect of asbestos has been felt by those who mined the material. Those who lived in the mining communities had no idea of the danger of asbestos. Asbestos was used in the building industry, in powerhouses and other facilities. As other honourable members have said, it was also used by the Royal Australian Navy. The navy used asbestos to wrap pipes for insulation and to assist in the heating of water.

I was particularly moved to read of the experience of a former Governor of New South Wales, Rear-Admiral David Martin, who died as a result of exposure to asbestos. He served as a young officer on aircraft carriers. It has been said that the expulsion shock on an aircraft carrier resulted in asbestos dust being shaken onto officers working in the operations room inside a carrier. During an operation those officers would be covered by asbestos dust, and they were not aware of the danger of the material they were inhaling. I understand that
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the effect of asbestos fibres on the lungs is similar to that of having several razor blades inside the lungs, cutting into the flesh and causing intense pain. It is not very hard to imagine the kind of pain that would be felt.

Tragically, many young and active people working in the Navy, in mines or in the building industry were unaware how asbestos was sucked into the lungs and remained there. They become aware, almost at the point of retirement, that asbestos dust causes cancer. Often death follows within 12 months of diagnosis of the disease. The proposed legislation will speed up the claim process so that drawn-out litigation does not worsen the torment endured by sufferers, by their spouses and families, and they will be able to have their claims resolved before they die.

Victims suffer greatly a relatively short period before death, and for that reason the bill provides for a benefit to families who have lost a loved one in such circumstances. The Christian Democratic Party supports that provision in the bill and does not support the amendment moved by the Opposition to remove it. Wittenoom and Baryulgil and the tragedy experienced by the Aboriginal community have been mentioned in debate. Aboriginals would be even less informed about the health dangers of working in asbestos mines. I have met Aboriginal men desperate to take any form of work who were happy to work in such mines without knowing that a death sentence would be incurred.

Many men in rural areas, particularly those in the Aboriginal community, may not have access to information available to city people and would not know how to make a claim through the Dust Diseases Tribunal. Therefore, an open-ended no limitation claim system is necessary. The Aboriginal community is suffering discrimination because of its inability to be kept up to date and well briefed about legislative changes. Aboriginals do not make a claim unless someone takes the time to spell out the procedure to them.

This bill, as a result of James Hardie Industries Limited v Newton and other cases, will restore the status quo by specifying that weekly compensation paid for a dust disease is not to be deducted from common law entitlements for pain and suffering. Apart from that change, reasonable offsetting between workers compensation and damages will continue to apply in those cases. The reason for such a reduction in damages payable is that the Dust Diseases Board by paying no-fault compensation has already met part of the overall liability for the worker’s disease. It is therefore appropriate and equitable for the negligent party to reimburse the board with the relevant amount. If that does not occur, the compensation fund administered by the Dust Diseases Board, which is financed by an annual levy on employers, will be effectively subsidising third parties who have caused workers to contract these serious conditions in the first place.

Another matter in the proposed legislation deals with the current arrangement under the main Workers Compensation Act. The proposed changes will extend those entitlements to other members of the diseased worker’s family such as parents, brothers and sisters who are dependent to some extent on the worker. I made the point that often death occurs in a short space of time - within 12 months - once the disease has been diagnosed. The bill extends discretion to allow the board to grant financial assistance to dust disease victims support groups also. A number of organisations are involved in helping people who are suffering from asbestos-related diseases such as the Asbestos Diseases Foundation of Australia, whose valuable educational material I have studied. That material would be helpful to people who have been working in this industry and who have contracted an asbestos disease.

The Asbestos Diseases Foundation of Australia, formerly the Asbestos Diseases Society of New South Wales Incorporated, supports and helps the victims of asbestos diseases as well as families, friends and other interested persons. When the society printed one brochure it had 130 members, many of whom were victims of asbestos diseases. In the brochure it explained:

Asbestos is a mineral which has been mined extensively and processed for many commercial applications throughout the world. It is commonly known in its various forms as blue asbestos . . . brown asbestos . . . or white asbestos . . .

The resistance of asbestos to fire and chemical break-down and its fibrous structure are properties which have made it so useful in many products.

The fire resistance of asbestos is one reason why it was used extensively in naval ships and other ships. The brochure continues:

. . . its use in building material as asbestos cement sheeting, insulation and various fireproof fabrics. It has also gained entry into homes in other forms such as ironing blankets, simmering pads for the top of stoves and the contamination of talcum powder.

That may cause concern to families and to mothers. The document continues:

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Asbestos fibres can become airborne because they are very fine. Some of them are small enough to get through the smallest airways of the lung . . . to end up in the air sacs where the oxygen gets into the blood.

Asbestos can also be swallowed.

Inhaled fibres are the cause of asbestos lung diseases.

Asbestos can even cause problems in the stomach. All types of asbestos are unsafe and dangerous to human beings. One could argue that the legislation and its amendments are needed because of the consequences of breakdowns in the dissemination of knowledge and the protection of society that occurred when asbestos use was widespread. There is not much point in trying to cast accusations in all directions. The question is how to improve the lives of sufferers with co-operation from industry, which is always concerned with the financial payout, the bottom line. Greater co-operation would be helpful.

Correspondence sent to me indicates confusion about the Workers Compensation Advisory Council and its decisions and about interpretation of the proposed legislation at recent meetings of that council. I conclude by referring to some of the letters we have received from people directly involved in this tragedy. Debbie Gibson wrote to me on 26 October about her father:

My father - Reg Wooster was a clean living chap, he didn’t smoke and only occasionally would enjoy a beer at a social occasion. He was an electrician and spent most of his earlier years working on power stations, which we now know were full of asbestos fibres.

Our world fell apart in January 1996 when Dad was diagnosed with Mesothelioma - the fatal asbestos cancer. Dad was given seven months to live and we began the trauma of putting his affairs in order and deciding what he wanted to achieve in his last months.

It seems that once the disease is diagnosed the sufferer lives for only a short time, usually no more than 12 months. In this instance Mr Wooster lived for only seven months. The letter continued:

Dad instituted legal proceedings against his employer through a Sydney legal firm who advised us that if Dad was to die prior to the case going to trial then the pain & suffering component of his case would no longer be available.

Pain & suffering is the major component of most Mesothelioma claims as the victims are usually at retirement age or have in fact retired when they are diagnosed, (as the disease usually lies dormant in their lungs for up to thirty (30) years) thus the loss of future economic earnings is usually very low.

That demonstrates the human tragedy of the matter that is dealt with in this bill. It can involve emotional responses. Maureen Wooster wrote to me on 26 October:

Sadly I now hear that the government have not passed it as the asbestos manufacturers and insurance companies are not happy with the proposed changes. My husband Reg Wooster died of Mesothelioma. It was devastating when we heard the news that he had an asbestos related cancer, as he had worked hard all of his life, and was a very fit man until this hit him.

My children and I found it very hard seeing him in so much pain and we could not do anything about it, we had to just watch him die. We were lucky if you can call it that, as his court case was settled before he died, so he died knowing he had left us comfortable.

We joined the NSW Asbestos Diseases Foundation and got a lot of support from them but I find it very sad to see quite a few families really struggling because their husbands did not make it through the court case, and it seems to go to the back of the pile.

Their husbands would not have died if asbestos had been banned years ago. So I do hope the government will think carefully about the proposed amendments and pass the bill.

Some of these people were concerned because they had heard that the Government intended to withdraw the bill or not proceed with it. We have received correspondence also from the Asbestos Diseases Foundation of Australia urging us to support the bill. I quote a section of its letter dated 10 November 1998:

I have been personally saddened by the opposition to the Bill and some of the arguments advanced in opposition to the Bill. Having attended the meeting of the Workers’ Compensation Advisory Council on 19 October 1998 I can only assume that there are still people who do not understand and appreciate the plight of asbestos victims and their families.

The letter concluded:

I implore you to support the Bill on behalf of my current members, their families and those who will become members of my organisation in the future and their families.

The foundation thanked us for our support of the bill. We received a detailed submission from the Asbestos Diseases Foundation of Australia replying to the second reading debate in the other place. The foundation was particularly critical of the comments made by the honourable member for Gosford, Mr Hartcher. I seek leave to table that submission replying to the remarks made during the second reading debate in the Legislative Assembly, some of which have been repeated in this House.

Leave granted.

I respect the honourable member for Gosford but it seems that he has been badly advised in regard to some of the material he quoted in his contribution to the debate which is factually incorrect according to other evidence we have received. Obviously, the honourable member would
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not have made the remarks if he had not believed them to be correct. He has been poorly briefed on these matters. I refer also to correspondence received from industry participants. CSR expressed its concern about the impact of the bill. In its letter of 27 October the company stated:

Because of the substantial impact the Bill will have on business and taxpayers of New South Wales, CSR suggests the Bill be referred to the Legislative Council’s Standing Committee on Law and Justice to put a proper consultation process in place.

That letter is signed by Alec Brennan, the Deputy Managing Director of CSR. The Government could still give consideration to that proposal in the future. The WorkCover inquiry related to workplace accidents and disease. All members of that committee were staggered to learn that in a specific 12-month period more deaths occurred as a result of workplace accidents and diseases than as a result of road accidents. The matter has been reviewed to some extent by the Standing Committee on Law and Justice, but a further reference could be made to that committee without delaying the progress of the bill.

The committee could monitor the operations of the bill and determine whether further amendments were required in the future. James Hardie Industries Limited had similar reservations about the bill. In a letter dated 27 October 1998 the Managing Director and Chief Executive Officer of James Hardie Industries wrote:

However, there are some elements of the Bill with which we have major concerns. They have the potential to significantly impact on both the resolution of dust disease claims in NSW and on the broader legal system by undermining a number of basic legal principles and promoting increased litigation in the DDT. The Bill also carries significant cost implications for employers, insurers and other parties, including the Dust Diseases Board. These implications have not been fully costed to date.

I am unsure whether the Government has costed what the changes might involve. The purpose of the proposed legislation is to speed up the payment of compensation, not to delay it. The company claims that it will be delayed. The Government will have to consider that matter and perhaps the Minister in his reply might assure the House that there is no danger of that occurring and that when the bill is enacted it will achieve greater efficiency and speed in supplying justice to those who have suffered and their families. We received a letter dated 11 November 1998 signed by L. J. Loch, Manager Corporate Communication, James Hardie, and Debra Stirling, General Manager Corporate Affairs, CSR. That letter stated in part:

The impost on the New South Wales community will be significant if the Bill is not amended. Many employers, especially those in small businesses, have inadequate or no protection to fund newly created past liabilities and, as a result, will face downsizing or closure. Insurers will face increased payouts - an expense which will have to be passed on to current NSW employers and policy holders. NSW taxpayers will face increased exposure, not only through the increased exposure of the various State entities which appear regularly before the Tribunal, but also court running expenses which will increase as a result of increased forum shopping.

The Government may have an answer to the concerns expressed in that letter. To put the whole matter into context, I noted from the submission made by CSR that more than 90 per cent of claims against that company are settled, usually by the end of the first hearing day. That company spent $4.5 million on settlements last year. James Hardie claimed in its submission that 90 per cent of claims are settled prior to judgment, 60 per cent of them by the first day of hearing, and that last financial year $17.5 million was paid out. Those figures indicate that the companies have endeavoured to co-operate in finalising claims in the great majority of cases. Perhaps those companies should not have been attacked as ferociously as they were by members of this House. Compassion must be extended to those suffering and dying, and to their families. The Christian Democratic Party is not inclined in principle to support the amendments moved by the Opposition.

The Hon. ELAINE NILE [10.00 p.m.]: I thank God for this bill. Governments have to be moved and sometimes they move in the wrong direction. But on this occasion the Government has been moved in the right direction by the Almighty. I pay tribute to a family friend, the father of one of my daughters-in-law, who has just died. Three years ago Noel Dark was diagnosed with mesothelioma. Because of the medical profession he carried a lot of baggage. When he asked his doctor to refer him for pain management he was told to not worry as he had only a few months to live. That response deeply affected his wife and his two daughters. We watched him suffer.

We thank God that he was given three more years of life. He put himself on a health diet and did all the things that many general practitioners say not to do. His local doctor said to him, "I don’t want to know what you are doing, Noel, or what your medication is, but keep it up." His family went through the torture of seeing his stomach distended and him undergoing the painful procedure of having fluid removed on a number of occasions until it gradually became too much for him. He was taking morphine and towards the finish received increasing doses. This was a difficult time for his family. Towards the end he said to his wife, "It is time to go."

Page 9991

They went to the Shoalhaven hospital and one of the doctors asked whether he had been sick for three months. His wife replied, "No, three years." In those three years he saw his two daughters married and his last grandson born, for which we were grateful. The Christian Democratic Party believes that this bill is overdue. At Noel’s funeral, Montana, his three-year-old granddaughter, who is also our granddaughter, stood beside the grave and threw in a basket of petals. She said, "Bye, bye, Poppy, I know you are a star in heaven." We have continued to love her and to comfort her for the loss of a grandfather. We know of the anguish of those who watch their fathers or husbands go through this pain and suffering. The Christian Democratic Party thanks the Government for introducing this bill.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [10.03 p.m.], in reply: I thank honourable members for their contributions to the debate. I am moved by the eloquence of some of the contributions, particularly from the crossbenchers. There is a real understanding of the anguish and tragedy that results from dust diseases and the tragic and often rapid death of people who have been well for many years despite their handling of asbestos but are suddenly plunged into this dreadful illness.

I am personally moved by the contributions of honourable members and their general support for these measures, which are careful, balanced and sensible and should not be opposed. I say, bluntly, that it is appalling that the Opposition wants this bill to be shunted to an advisory committee. The Government has worked through it and has consulted with many employer companies. My officers have consulted in detail with the insurance companies, unions, and groups which represent workers inflicted with this dreadful disease. The bill has been through a consultative process; it is absurd to suggest it now be sent back to the workers compensation advisory committee.

The bill has been considered by the advisory committee and the Government has received its feedback. The Government has considered the committee’s advice and taken the view that this package is defensible and ought to be sustained and pursued through the House. It is regrettable, lamentable and deplorable that the Opposition is taking an obstructive stance to this package which is defensible on moral, legal and financial grounds. I commend the bill to the House.

Question - That the amendment be agreed to - put.

The House divided.

Mr Bull Mr Ryan
Mrs Forsythe Mr Samios
Mr Gallacher Mr Smith
Miss Gardiner Mr Willis
Mr Gay
Mr Hannaford Tellers,
Mr Lynn Mr Jobling
Dr Pezzutti Mr Moppett


Mrs Arena Rev. Nile
Dr Burgmann Mr Obeid
Ms Burnswoods Mr Primrose
Dr Chesterfield-Evans Ms Saffin
Mr Cohen Mrs Sham-Ho
Mr Corbett Mr Shaw
Mr Dyer Ms Tebbutt
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kelly Tellers,
Mr Macdonald Mrs Isaksen
Mrs Nile Mr Manson

Dr Goldsmith Mr Kaldis

Question so resolved in the negative.

Amendment negatived.

Motion agreed to.

Bill read a second time.

Schedule 1

The Hon. R. T. M. BULL (Deputy Leader of the Opposition) [10.15 p.m.]: I move Opposition Amendment No. 1:

No. 1 Page 3, schedule 1. Insert after line 9:

[2] Section 3 (2) (c)

Insert after section 3 (2) (b):

, and

(b) a reference to a dust-related condition is a reference to a dust-related condition that is

Page 9992
attributable wholly or primarily to exposure to dust in New South Wales.

The purpose of the amendment is to ensure that a disease suffered by a claimant in New South Wales was generated by a dust-related condition attributable to either working in New South Wales or using a product that came from New South Wales. In recent times in New Zealand advertisements by solicitors have advocated that New Zealand people should come to New South Wales to sue for damages for work-related diseases.

The provisions of the bill will mean that, because the major companies are located in New South Wales, anyone in any part of Australia, or potentially any part of the world, who acquired a disease in New South Wales will be able to sue for damages here. The intention of the Opposition amendment is to try to ensure that New South Wales looks after those who have worked in New South Wales or who have acquired a disease as a result of activities within New South Wales. I commend the amendment.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [10.17 p.m.]: The Government does not accept the amendment, which we do not regard as useful. Obviously the amendment seeks to limit the jurisdiction of the Dust Diseases Tribunal to the hearing of claims for damages related to dust-related conditions. The effect of the amendment is that persons whose dust exposure occurred outside New South Wales, or partly in New South Wales but not primarily, will still be able to bring a claim in New South Wales courts but not before the Dust Diseases Tribunal. This is a specialist tribunal which was established to hear all damages matters for dust-related conditions, and the resources of New South Wales courts are arranged to have those matters heard by that tribunal.

The Opposition amendment may lead to confusion and duplication in such matters, with possible anomalies in decisions relating to dust disease matters. The amendment does not, as the Government sees it, achieve the outcome of encouraging inter-forum shopping. The Government takes the view that the question of a convenient forum is better dealt with in general legislation applying to litigation of all classes. The Government is taking on board the views of the Court of Appeal and of the Chief Justice and other members of the Court of Appeal in Grigor’s case.

The Government is bound to take on board what those people have said about whether New South Wales courts should be used for litigation commenced by overseas litigants. The Government simply does not see this amendment as contributing to appropriate policy development in that area. The amendment really is conducive of more argument and more litigation on whether a particular condition is attributable wholly or primarily to exposure to dust in New South Wales.

The Hon. R. T. M. BULL (Deputy Leader of the Opposition) [10.19 p.m.]: The Opposition notes the arguments of the Government. Put in its simplest form, it seems that the Government accepts that New South Wales has a specialist tribunal - the only tribunal of its kind in the world. It is acknowledged that awards of damages of this tribunal are more substantial than those of courts in any part of Australia. Therefore the Government, as a matter of principle, should encourage the use of the tribunal by all potential plaintiffs from any jurisdiction, whether in Australia or overseas.

Clearly the Government has adopted that policy, but the Opposition has not. The Opposition believes that the Government has a responsibility to those who have worked in New South Wales and to those who have contracted the disease as a consequence of activities carried out wholly or primarily in New South Wales. The Opposition is not seeking to establish New South Wales as the litigation centre of Australia for dust diseases, but that will be a consequence of the measure in the bill, and the Opposition does not accept it.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [10.20 p.m.]: Lest my silence be construed as acquiescence, may I say that the extrapolation put on my remarks by the Leader of the Opposition is not justifiable on the basis of anything I have said to the Committee. I said that the question of a convenient forum needs to be addressed, but it needs to be addressed generally in relation to litigation commenced in New South Wales by people from overseas. Nothing I have said supports the idea that there should be a special test, which would no doubt require considerable litigation, on questions of fact and law designed to ask the tribunal whether a worker has a condition that is wholly or primarily attributable to exposure to dust in New South Wales.

Question - That the amendment be agreed to - put.

Page 9993

The Committee divided.

Mr Bull Mr Ryan
Mrs Forsythe Mr Samios
Mr Gallacher Mr Rowland Smith
Miss Gardiner Mr Willis
Mr Gay
Mr Hannaford Tellers,
Mr Lynn Mr Jobling
Dr Pezzutti Mr Moppett

Mrs Arena Rev. Nile
Dr Burgmann Mr Obeid
Ms Burnswoods Mr Primrose
Dr Chesterfield-Evans Ms Saffin
Mr Cohen Mrs Sham-Ho
Mr Corbett Mr Shaw
Mr Dyer Ms Tebbutt
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kelly Tellers,
Mr Macdonald Mrs Isaksen
Mrs Nile Mr Manson

Dr Goldsmith Mr Kaldis

Question so resolved in the negative.

Amendment negatived.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [10.29 p.m.]: I will not move Opposition amendment No. 2. I move Opposition amendment No. 3:

No. 3 Pages 3 and 4, schedule 1[3], proposed section 12A, line 13 on page 3 to line 7 on page 4. Omit all words on those lines.

This amendment deals with the Limitations Act and is related to amendments Nos 20 and 23. In the second reading debate I spent some time addressing the implications of eliminating a limitation period. I made it clear that imposing no limitation period on the initiation of proceedings would eventually contribute to a significantly additional workload and lead to significantly additional delays.

The Government advocates an improvement in the administration of dust diseases claims, but any improvement would be undermined if it proceeds with this measure. The present Act works quite well - to the extent that only one application for leave to apply out of time has been rejected. Establishing New South Wales as a major centre in which to initiate proceedings and the only jurisdiction in common law countries without a limitation period is likely to result in the number of claims escalating abnormally. That would be to the detriment of the operation of the dust diseases tribunal. Eventually it would be to the detriment of those who want a speedy resolution of their claim. The Opposition regards this as a fundamental issue that would undermine the provisions of the Act. For that reason the Opposition opposes the amendment and will divide on it.

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading) [10.31 p.m.]: The Government cannot accept this amendment. It seeks to undermine provisions in the bill that remove dust disease sufferers from the administration of the Act. The Opposition might say that those provisions are a radical move, but they relate to a distinguishable condition within a distinguishable area of compensation law. It is unique in many respects.

The Opposition amendment seeks to have dust disease victims comply with the Limitations Act and thus experience additional costs and delays involved with that procedure or miss out on entitlement to damages. Limitation periods under the Limitation Act are not appropriate for dust disease victims suffering from diseases of long latency. While the Limitation Act allows an extension of time for cases involving diseases of long latency, victims of dust diseases suffer delay and added costs in overcoming that hurdle.

Dust disease victims suffer swift deterioration in their condition, and under the Opposition’s proposal plaintiffs would miss out on damages if they died before their claim is finalised. The Government contends that the Opposition amendment is harsh and disadvantages those who have much to lose.

Question - That the amendment be agreed to - put.

The Committee divided.

Mr Bull Mr Ryan
Mrs Forsythe Mr Samios
Mr Gallacher Mr Rowland Smith
Miss Gardiner Mr Willis
Mr Hannaford Tellers,
Mr Lynn Mr Jobling
Dr Pezzutti Mr Moppett

Page 9994

Mrs Arena Rev. Nile
Dr Burgmann Mr Obeid
Ms Burnswoods Mr Primrose
Dr Chesterfield-Evans Ms Saffin
Mr Cohen Mrs Sham-Ho
Mr Corbett Mr Shaw
Mr Dyer Ms Tebbutt
Mr Egan Mr Tingle
Mr Johnson Mr Vaughan
Mr Jones
Mr Kelly Tellers,
Mr Macdonald Mrs Isaksen
Mrs Nile Mr Manson

Dr Goldsmith Mr Kaldis

Question so resolved in the negative.

Amendment negatived.

Schedule agreed to.

Progress reported from Committee and leave granted to sit again.